The Basic Structure Doctrine

The Basic Structure Doctrine holds that there are certain fundamental features or
basic elements of the Indian Constitution that cannot be amended by the
Parliament. These essential features form the foundation and the essence of the
Constitution and cannot be altered or destroyed by any amendment.

Basic Structure Doctrine simply means that Although Parliament has the power to
amend any part of the Constitution; it could not use this power to alter or
destroy its “basic structure”.

The doctrine provides a limitation on the amending power of the Parliament and
ensures the protection of the core principles and values enshrined in the
Constitution. It acts as a safeguard against any arbitrary or excessive amendment
that may seek to alter the basic structure of the Constitution.

The judiciary, as well as Parliament, has not provided an exhaustive or exclusive

definition of the fundamental structure. The doctrine of basic structure has been

The specific elements that constitute the basic structure of the Indian
Constitution have not been exhaustively defined by the courts. It is defined by the
judiciary using a case-by-case approach.. However, some commonly accepted
components of the basic structure include the supremacy of the Constitution, the
rule of law, and the separation of powers, judicial review, federalism, secularism,
and protection of fundamental rights.

The Basic Structure Doctrine has played a significant role in shaping Indian
constitutional law. It has been used by the Indian judiciary to strike down several
constitutional amendments that were deemed to violate the basic structure. This
doctrine has been instrumental in upholding the integrity and stability of the
Indian Constitution and maintaining the balance of power between the three
branches of the government.

The Basic Structure Doctrine is not explicitly mentioned in the text of the Indian
Constitution. However, it has been developed and recognized as a legal principle
by the Supreme Court of India through its interpretation of various constitutional
provisions. The doctrine finds its roots in the landmark case of Kesavananda
Bharati v. State of Kerala (1973). In this case, the Supreme Court held that
although the Parliament has the power to amend the Constitution under Article
368, such amending power cannot be used to destroy or alter the basic structure
of the Constitution.

Evolution of doctrine:

The doctrine has been formulated by the Indian judiciary through various cases as
elaborated below.

Shankari Prasad v. Union of India (1951)

After Independence, Constitution of India came in to force and it became
applicable, but during that time Zamindari system was quite prevalent in India
where big zamindars owned big areas of lands and properties. During that time
Right to property was included as a Fundamental Right under Article 19. The 1st
Constitutional Amendment Act, 1951 was argued in this case.
Zamindari system was very prevalent all over India. In the view to abolish the
Zamindari system, some state legislatures took certain measures particularly in
Bihar, Uttar Pradesh and Madhya Pradesh by enacting Zamindari Abolition Act.
In this case, the petitioner i.e., Shankari Prasad, who was a Zamindar from Bihar,
his land was taken by the government under the Zamindari Abolition Act, 1951.
But, because Right to property was inserted as a Fundamental Right all the
Zamindars who were affected by the legislations, they approached the Court of
law to challenge the validity of these legislations. They argued that, it is violating
their Fundamental Right i.e. Right to property granted them by Part III of the
Constitution.
During this time, 1st Constitutional Amendment Act was passed the government
to put an end to this litigation challenging the validity of these Zamindari Abolition
Act. The first Amendment Act secured the validity of the Acts enacted by the
various states in order to end the Zamindari practice. By the 1st Constitutional
Amendment, the Parliament inserted Article 31A and Article 31B. Article 31A
made it possible for a state to acquire a property without having violated any
fundamental rights.
The petitioner argued that the 1st Constitutional Amendment Act was an attack
on the Fundamental Rights as mentioned in the Constitution of India and it was
abrogating Article 13[2] of the Constitution of India stated that any law The State
shall not make any law which takes away or abridges fundamental rights and any
law made in contravention of this clause shall, be void."
By the 1st Constitutional Amendment Act, the government ensured that even if
state governments are passing Zamindari Abolition Acts, people cannot challenge
the validity of these legislations.
NOTE: THE ABOVE PRAGRAPHS WRITTEN IN ITALICS R JUST FOR
UNDERSTANDING

The case of Shankari Prasad is among the initial cases of the Supreme Court
evolving the basic structure doctrine in India. Here, the Court was concerned with
the constitutional validity of the First Amendment Act, 1951 which restricted the
fundamental right to property. Upholding the amendment, the Supreme Court
opined that the Parliament had the power under Article 368 to modify any part of
the Indian Constitution by way of constitutional amendment, including the
fundamental rights.

In this case the court had ruled that the term “law” in Article 13 must be taken to
mean rules or regulations made in exercise of ordinary legislative power and not
amendments to the Constitution made in exercise of constituent power under
Article 368. This means Parliament had the power to amend any part of the
constitution including Fundamental rights. Article 13(2) reads, "The State shall not
make any law which takes away or abridges fundamental rights and any law
made in contravention of this clause shall, be void."

Golaknath case

In Jalandhar, Punjab, two brothers called Henry and William Golaknath owned
around “500 acres of farmland.”
The Golaknath brothers were told that they could only have 30 acres of land
under the newly adopted Punjab security and land tenure act and that a portion
of the land would be allocated to tenants while the rest would be considered
excess and taken over by the government.

The Golaknath family contested the Punjab government’s actions, and the case
finally reached the Supreme Court in 1965.

 SC overruled its judgment in Shakari prasad

 It ruled in this that- Fundamental Rights are given a transcendental
and immutable position and hence the Parliament cannot abridge or
take away any of these rights
 It opined the constitutional amendment act is also a law under Art 13

Parliament reacted to this judgment by enacting 24 th amendment act which

included a provision in Art 368 which declared that Parliament has power to
take away any of the fundamental rights

Keshavananda Bharati case

 SC overruled its judgment in the Golaknath case
 It upheld the validity of the 24 th amendment act and opined that
parliament is empowered to take away or abridge any of the
FRs. However, such changes should not alter the ‘basic structure’ of
the constitution
 It was held that the power of Parliament to amend the Constitution is far
and wide and extends to all the Articles but it is not unlimited to an
extent that it destroys certain basic features or framework of the
Constitution.

Parliament reacted to the above case by enacting 42 nd amendment act

which declared under article 368 that there is no limitation on the
constituent power of Parliament and it barred the courts from questioning
such amendments.
Minerva mills case
This provision was invalidated by the SC stating that Parliament cannot take
away the ‘judicial review’ power of the constitution since it is part of the
‘basic structure of the doctrine

The ‘basic structure’ doctrine has since been interpreted to include

the supremacy of the Constitution,

The rule of law,

Independence of the judiciary,

Doctrine of separation of powers,

Sovereign democratic republic,

The parliamentary system of government,

The principle of free and fair elections,

Welfare state, etc

Main criticisms of Basic Structure:

Judicial Overreach
Critics argue that the Basic Structure Doctrine grants excessive power to the
judiciary, potentially resulting in judicial overreach. They contend that
unelected judges should not have the authority to determine the limits of
constitutional amendments, as this power should reside with the elected
representatives of the people

Lack of Clarity and Certainty

There is no definite elucidation on what exactly constitutes basic
structure. It lacks precise definition and clarity regarding the components that
constitute the basic structure thereby, making the doctrine ambiguous

No textual basis

The doctrine does not have a textual basis. There is no provision

stipulating that this Constitution has a basic structure and that this
structure is beyond the competence of amending power

Potential Rigidity: Some argue that the doctrine's protection of the basic
structure may be perceived as inflexible and rigid. Critics contend that it
restricts the ability to adapt the Constitution to evolving circumstances and
emerging needs. They argue for more flexibility in constitutional amendments
to address evolving challenges without the risk of being invalidated for
violating the basic structure.